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[2015] ZALCJHB 97
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Mokapane and Others v Mogalakwena Local Municipality (J 244/15) [2015] ZALCJHB 97 (18 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
J
244/15
DATE:
18 MARCH 2015
Not
Reportable
In
the matter between:
MOKAPANE
VAALTYN
LETSOALO
..........................................................................
First
Applicant
SECOND AND
FURTHER APPLICANTS AS PER
ANNEXURE ‘A’
HERETO
..................................................................
Second
and Further Applicants
And
MOGALAKWENA
LOCAL
MUNICIPALITY
..................................................................
Respondent
Date
heard: 04 March 2015
Delivered:
18 March 2015
JUDGMENT
RABKIN-NAICKER
J
[1] The
applicants, some 160 employees brought an urgent application seeking
an order directing the respondent to pay amounts deducted
from their
January 2015 salaries. The application is therefore in essence
for a final mandatory interdict. The application
was first set
down on 24 February 2015 when Steenkamp J granted an order by consent
which resulted in the applicants returning
to the workplace. The
remaining relief sought was postponed for hearing on 4 March 2015
with costs of the 24
th
February to stand over.
[2] The context
and background to the application may well be somewhat disheartening
to those citizens who rely on municipal services
provided by the
respondent. The founding affidavit records that the council of
the municipality has been racked by conflict
and strife between two
factions of the African National Congress which has an overwhelming
majority of seats on the council of
the respondent. For our purposes
it is only necessary to record that one of the factions was opposed
to the suspension of the municipal
manager, Mr Shella William Kekana,
(the Kekana faction). The other faction favoured his suspension
(the anti-Kekana faction).
[3] Various high
court applications have ensued in the wake of the above conflict
which were referred to in the founding papers.
For the purposes
of this judgment it is necessary to record that the conflict
manifested itself in a strong police presence at
the main municipal
building and new security personal being brought in by the
anti-Kekana faction. It is averred in the founding
papers that since
November 2014, the staff have been unable to return to duty, fearing
for their safety and well-being. The
police and security
guards, they claim, act on the instructions of the anti-Kekana
faction and HAVE barred them from entering the
premises.
[4] The applicant
employees therefore stationed themselves inside the main municipal
yard and at the library building and adjacent
to the main municipal
building. They aver this amounted to reporting for duty and
attendance registers are annexed to the
papers recording the names of
those who attended at the library.
[5] It is not
disputed that on 24 November 2014 members of the SAPS acting on the
instructions of the anti-Kekana faction cordoned
off all the
entrances and exits to the municipal buildings at approximately
16h00. According to the applicants they proceeded
to use tear
gas and rubber bullets to forcibly expel employees and the security
guards appointed by the Kekana-faction were ordered
to leave. On
the respondents version this “scuffle” ended on the same
day. On the 25
th
November the majority of the
council’s employees returned to work – more than 1000 of
them. It is respondents
case that the applicants did not to
report for duty in support of the Kekana faction. They aver
that the applicants were
addressed on a number of occasions by
Kekana.
[6] Returning to
the legal skirmishes between the factions, I record that on 4
December 2014, Kekana approached the high court and
obtained an
interim order against the police services to immediately remove all
persons from the municipal buildings not having
the permission of “SW
Kekana the municipal manager of the applicant”. Kekana
was suspended on 4 December 2014
and on 8 December 2014, the MEC for
Cooperative Governance & Traditional Affairs seconded a Mr Selepe
(Selepe) to act in his
stead.
[7] On the 6
January 2015, the applicants tried to gain entry to the premises and
aver that they were again prevented from doing
so by the police who
made use of water canons and rubber bullets. The respondent
avers that the ‘scuffle’ broke
out in that the applicants
were infiltrated by a group of security guards (those no longer
employed by the respondent) who were
heavily armed together with a
group of members of the Mahwelereng Residents Association. Kekana
who was on suspension and
Mabuela, an expelled councilor, were also
present.
[8] The
applicants received a notice issued by Selepe on 8 January 2015
stating that they had embarked upon an unprotected strike
and the ‘no
work no pay principle applied’. On 28 January 2015,
amounts substantially less that their normal
salaries were paid into
applicants bank accounts. Certain amounts that had been
deducted in respect of an item referred to
as ‘unpaid leave’.
[9] It is
applicants’ case that they attempted to return to work on
various occasions since 24 November 2014, but on each
occasion were
prevented from doing so. These include 8 December 2014, 6
January 2015 and again on 23 February 2015.
[10] The
respondent denies that they have not been able to return to the
workplace. Other employees have been at their work
stations.
However it is respondent’s case that the applicants had
not been prepared to report for duty in the normal
way but rather
entering in a singing crowd which included other persons such as the
former security guards removed by the anti-Kekana
faction.
[11] The
respondent acknowledges that members of the SAPS entered its premises
on 3 November 2014 and that they had prevented a
group of people,
including the applicants, from entering the premises on 6 January
2015. They aver that the SAPS were there
to maintain law and
order, and protect the municipality’s assets.
Evaluation
[12] I return to
my statement in the first paragraph of this judgment that this urgent
application is for a mandatory final interdict.
The onus is
therefore on the applicants to establish the three requirements for a
final interdict: a clear right, an injury
actually committed or
reasonably apprehended, and the absence of similar protection by any
other ordinary remedy.
[1]
[13] In
Jaffit
v Garlicke & Bousfield Inc
2012 (2) SA 562
(KZP)
the court
focused on the first requirement as follows:
“
A
party seeking to establish a clear right so as to justify a final
interdict is required to establish, on the balance of probability,
facts and evidence which prove that he has a definite right in terms
of substantive law.
(See Nienaber v Stuckey
1946 AD 1049
at 1053
and 1054; Mosii v Motseoakhumo
1954 (3) SA 919
(A); and De Villiers v
Soetsane
1975 (1) SA 360
(E) at 362.)
….. where the
authorities refer to a clear right, it is reference rather to a right
which is clearly established. (
Compare Jones & Buckle The
Civil Practice of the Magistrates' Courts in South Africa 9 ed at 93;
and Herbstein & Van Winsen
The Civil Practice of the High Courts
of South Africa 5 ed at 1458.)
[14] I must
therefore decide whether on the papers, the applicants have clearly
established the right to be paid their salary for
the period in
question on the basis that they tendered their services to their
employer. I find on the papers, and taking
into account the
Plascon Evans
rule, that the right has not been clearly
established. On the respondents version the applicants were
aligned with a particular
faction and were addressed by leaders of
the faction while the standoff was taking place. They were
supported in their attempt
to go into the building en masse by armed
former security guards and other persons not employed by the
municipality. Mr.
Hulley for the applicants submitted in court
that there was no reason why they should not have gone in to work in
a singing group.
Over and above the fact that it was not just
the applicants that wished to enter en masse, in the whole context of
the matter,
what the applicants describe as their attempts ‘to
gain entry’ to the building simply cannot be equated with an
attempt
to reach their work stations and tender the services they are
remunerated for.
[14] There are no
angels in this matter. The major problem that the court has had
in determining this application is this:
neither the ‘employers’
nor ‘employees’ in this case appear to have been
motivated in their actions by
employment related issues. Rather
power politics was at play. This is why there was no strike or
lock-out, no matters
of mutual interest or rights disputes raised as
issues in the disputes between them. On both sides of the
divide persons
were united not because of their different interests
arising from an employment relationship, but because of other
allegiances.
The situation of certain employees being outside
of the building containing their workstations, and a police presence
guarding
the entrance to that building, arose from factors unrelated
to employment relations. One may pose the following question:
Should our employment legislation (hard fought for by previous
generations) and the labour court be used to adjudicate these type
of
battles?
[13] In any
event, given my finding that the applicants have failed to clearly
establish a right to the relief they seek, their
application stands
to be dismissed. Taking into account the real genesis of the
dispute, the persons involved would be better
served by attempting to
solve their problems in the municipal or party political structures
from whence the problems stem. I
believe it is appropriate for
me to make no costs order in this application and let both sides bear
their own costs. The
real losers in this dispute are the
members of the community the respondent is supposed to serve. In
all the circumstances,
I make the following order:
Order
1. The
application is dismissed.
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Adv G.I. Hulley S.C.
Instructed
by: Phungo Incorporated
Respondent:
Advocate Kenndy Tsatsawane
Instructed
by: Hogan Lovells SA
[1]
(Setlogelo v Setlogelo
1914 AD 221
at 227).